Seattle Trademark Lawyer

Plaintiff CytoSport, Inc., sued Vital Pharmaceuticals, Inc., in the Eastern District of California for trademark and trade dress infringement. CytoSport then moved for a preliminary injunction enjoining Vital from marketing, selling, advertising or promoting a liquid protein-based nutritional supplement using the name MUSCLE POWER or any other trademark confusingly similar to plaintiff’s MUSCLE MILK trademark. CytoSport (CS) also sought to enjoin Vital (VPX) from using trade dress that is confusingly similar to its trade dress.

On May 6, Judge Frank Damrell, Jr., granted CytoSport’s motion. The court concluded: “Plaintiff has demonstrated a reasonable likelihood of success in demonstrating that defendant’s use of its MUSCLE POWER® trademark and trade dress infringes plaintiff’s MUSCLE MILK® trademark and trade dress, that plaintiff is likely to sustain irreparable harm to its reputation and customer goodwill absent preliminary relief, the balance of equities tips in plaintiff’s favor in light of its longstanding reputation in the community and use of the MUSCLE MILK® trademark, and the public is served by issuance of the requested injunction which seeks to avoid customer confusion in the marketplace and permits plaintiff to control its products’ reputation.”

On the trade dress issue, the court found: “The features of CS’s trade dress which have been employed by VPX include the following: (1) the package front of the MUSCLE POWER product is visually divided into three sections, top, middle, and bottom; (2) on the middle portion of the package, the word MUSCLE is prominently displayed above the second word of the composite mark in all capital letters in a bold, block-letter, white-colored font on a dark background; (3) on the lower portion of the package a depiction of a swirled colored liquid appears reflecting the color of the product in the package, i.e., brown for chocolate, red for strawberries and cream, etc.; (4) on the top portion of the package, an identification of the flavor in words and a picture appears; (5) on the side of the package, the MUSCLE POWER mark is printed in bold, block-letter font and oriented so the consumer can read the words from the bottom to the top of the package; and (6) VPX uses the Tetra-Pak packages which are created by printing a label directly on to a flat piece of packaging material that is subsequently folded onto a three-dimensional carton that can be filled with the product.

“Defendant’s efforts to expose trivial distinctions between the two marks are unimpressive. VPX points to only subtle differences between the way the marks are used, such as the red outline around its brand name, as opposed to plaintiff’s black outline, and the ‘splash’ on the bottom of its package instead of plaintiff’s ‘swirl.’ These minor differences are ‘trivial distinctions’ especially when viewing the products in full, as they appear in the marketplace. Seen in this light, the marks are glaringly similar.”

Vital appealed these findings. On Oct. 13, the Ninth Circuit affirmed in short order, stating: “We conclude that the district court did not rely on an erroneous legal premise or abuse its discretion in concluding that Cytosport was likely to succeed on the merits and showed a strong likelihood that it would suffer irreparable harm if the preliminary injunction did not issue. Accordingly, we affirm the district court’s order granting the preliminary injunction.”

The case cite is CytoSport, Inc. v. Vital Pharmaceuticals, Inc., 2009 WL 3287630, No. 09-15969 (9th Cir. Oct. 13, 2009).